Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171
CITATION: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171
DIVISIONAL COURT FILE NO.: 266/19
DATE: 20201016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse, Labrosse JJ.
BETWEEN:
Dr. Jonathan Mitelman Appellant
– and –
College of Veterinarians of Ontario Respondent
Leo Klug, Counsel for the Appellant
Bernard Leblanc and Maya Pearlston, Counsel for the Respondent
HEARD: October 8, 2020 By Videoconference
Backhouse J.
Overview
[1] This is an appeal and a cross-appeal from two decisions of a panel of the Discipline Committee of the College of Veterinarians of Ontario (the “Panel”). The first decision, dated April 17, 2019, found that the Appellant had engaged in professional misconduct within the meaning of s. 17(1) of O. Reg. 1093 under the Veterinarians Act, R.S.O. 1990, c. V.3 (the “Merits Decision”). The second decision, dated November 5, 2019, set out the Panel’s reasons as to the appropriate sanctions and costs (the “Sanctions Decision”). Among other things, the Panel ordered that the Appellant’s licence to practise veterinary medicine be suspended for three months and ordered the Appellant to pay $62,400.00 in costs. The Appellant requests that all findings of professional misconduct be dismissed. The Appellant also requests that the penalty of a three-month licence suspension be set aside in lieu of a one-month suspension and seeks leave to challenge the costs award.
[2] In the cross-appeal, the Respondent is requesting that a condition and limitation on the Appellant’s licence be imposed which the Panel had declined to grant, whereby he could only practise in the presence of another member of the College of Veterinarians of Ontario approved by the College.
Factual Background
[3] On April 23, 2018, the College issued a Notice of Hearing alleging that the Appellant had engaged in the following acts constituting professional misconduct contrary to s. 17(1) of O. Reg. 1093 under the Veterinarians Act:
paragraph 24 (physical abuse of a client),
paragraph 44 (committing an act or omitting to act where members of the profession would consider the act/omission disgraceful, dishonourable, or unprofessional),
paragraph 45 (conduct unbecoming), and;
paragraph 46 (contravention of a law that is relevant to the member’s suitability to practise veterinary medicine).
[4] The allegations were that the Appellant:
(a) accessed through his records the home address of a client, S.L., in order to go to her house, without her permission or consent;
(b) attended S.L.’s home address in order to collect an outstanding balance on her account;
(c) offered or provided veterinary services without being asked to do so and without S.L.’s consent while at S.L.’s home; and,
(d) physically and verbally abused a client, S.L.
[5] The allegations arose as a result of the Appellant’s interaction with S.L. after performing surgery on her cat, Snoopy. The Notice of Hearing states that at Snoopy’s discharge appointment on November 9, 2015, S.L. was informed that Snoopy had not had a bowel movement since the surgery three days prior. S.L. became upset and left the clinic with Snoopy and without settling her account, which had a balance of approximately $1,500.00. The Appellant tried to contact S.L. over the phone, and being unsuccessful, obtained S.L.’s home address from the records. The Appellant then went to S.L.’s home where a physical altercation occurred.
The Merits Decision
[6] During the Discipline Committee hearings held March 11, 12, and 15, 2019, the Panel heard testimony from several witnesses, including S.L. (the client and owner of Snoopy), Denise Angus (an employee of the Appellant), Leslie Kelly (S.L.’s downstairs neighbour), Michael Kimmerer (S.L.’s other downstairs neighbour), Maria Baker (the Appellant’s receptionist), Dr. Anna Zaborowski (a colleague of the Appellant hired one month prior to the incident), and the Appellant himself.
[7] The Panel accepted the following facts as uncontested:
• On November 6, 2015, the Appellant successfully performed spinal surgery on S.L.’s cat, Snoopy who had fallen from a balcony.
• On November 9, 2015, S.L. took Snoopy home. Later that evening, Dr. Mitelman appeared at the residence of S.L. without notice or permission.
• While Dr. Mitelman was at S.L.’s door, both Dr. Mitelman and S.L. raised their voices. S.L. ended up on the floor.
• Both individuals sustained injuries as a result of the encounter: Dr. Mitelman had scratches on his face and S.L. had bruising on her upper thigh, as well as injuries to her fingers as a result of a bite from Dr. Mitelman.
• Both Dr. Mitelman and S.L. called the police, who attended both Dr. Mitelman’s clinic and S.L.’s home. No charges were laid.
[8] The Panel made the following determinations on the allegations:
- The Appellant accessed S.L.’s home address through his records in order to go to her house, without her permission or consent
[9] The Panel held that it was far more probable that the Appellant attended S.L.’s home because of how she left the clinic, her treatment of his staff, and the outstanding bill. The Panel held that the Appellant could have chosen any number of alternative means of contacting S.L., and moreover, should have anticipated that appearing unannounced at S.L.’s home would likely escalate rather than resolve tension. The Panel concluded that members of the profession would have considered it unprofessional to access a client’s personal information in order to confront them at home about an outstanding bill. The Panel held that misusing a client’s private information constituted conduct unbecoming of a veterinarian. The Appellant, therefore, was found to have engaged in professional misconduct pursuant to paragraphs 44 and 45 of s. 17(1) of O. Reg. 1093.
- The Appellant attended S.L.’s home address in order to collect an outstanding balance
[10] The Panel observed that while the Appellant claimed that he did not go to S.L.’s home to collect the outstanding bill but rather to deliver medications, no witnesses heard any mention of medication. Instead, witnesses both to the incident and to the Appellant the day after stated that he spoke about S.L. stealing from him and the consequences of not paying a vet bill. The Panel accepted that both parties were experiencing heightened anxiety at the time of the home visit, and that while the Appellant’s actions lacked a “moral failing” to render them disgraceful, they were nevertheless unacceptable and unprofessional. The Panel therefore held that by attending the home of S.L. for the purpose of collecting an outstanding bill, the Appellant had engaged in professional misconduct pursuant to paragraph 44 of s. 17(1) of O. Reg 1093.
- The Appellant offered or provided veterinary services without being asked to do so and without S.L.’s consent while at S.L.’s home
[11] The Panel dismissed this allegation
- The Appellant physically and verbally abused a client (S.L.)
[12] The Panel accepted that both individuals likely contributed to the escalation and ensuing physical altercation. The Panel held, however, that a veterinarian should never become involved in this kind of physical altercation with a client, regardless of who was the aggressor. The Appellant was found to have engaged in professional misconduct pursuant to paragraph 24 of s. 17(1) of O. Reg. 1093.
- The Appellant contravened a law that affected his suitability to practice veterinary medicine
[13] The Panel also dismissed this allegation which arose in the College’s closing submissions and was based on the notion that by accessing S.L.’s personal information after she stormed out of the clinic (thereby terminating the veterinarian-client-patient relationship), the Appellant had violated privacy laws under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. The Panel dismissed this allegation because there was insufficient evidence to support the idea that the relationship had been permanently severed.
The Sanctions Decision
[14] On August 26 and 27, 2019, the Panel reconvened to hear submissions on penalty and costs. The Appellant and several character witnesses, including current and former clients, colleagues, and employees, gave viva voce evidence. The Panel also read letters of support for the Appellant. In its written submissions, the Respondent canvassed cases with similar penalties, a case discussing the usefulness of character witnesses who are not apprised of the facts, and three previous decisions involving professional misconduct and serious neglect on the part of the Appellant.
[15] The Respondent sought a recorded public reprimand; suspension of the Appellant’s veterinary medicine licence for at least five months; that the Appellant complete an anger management course and meet with an anger management coach; that the Appellant complete a course on workplace ethics and boundaries, and a course on privacy; and a condition that the Appellant not practise veterinary medicine except in the presence of an approved member of the College.
[16] The Appellant accepted most of the Respondent’s proposals. However, he argued that any suspension should be only four weeks and run concurrently with another pending suspension. He also argued that the order that he be required to practice in the presence of another member of the College was unduly punitive because he operated out of a mobile clinic and this would make it virtually impossible for him to work.
[17] The Panel accepted the Respondent’s proposals, except that the suspension requested was reduced to three months and the Panel declined to order the supervision requirement.
Court’s Jurisdiction
[18] The Divisional Court has jurisdiction to hear this appeal and cross-appeal pursuant to s. 35(1)(a) of the Veterinarians Act, which states that a party to a proceeding before the Discipline Committee may appeal to the Divisional Court from the decision.
Standard of Review
[19] The appeal of the decisions of the Discipline Committee is being brought as of right under s. 35 of the Veterinarians Act. The appellate standards of review apply to the Discipline Committee’s decisions.[^1] The appellate standard of review is palpable and overriding error with respect to findings of fact. This accords a high level of deference. The Supreme Court of Canada has described a “palpable and overriding” error to mean one that is “plainly seen” or “unreasonable or unsupported by the evidence.” Findings of mixed fact and law where the legal principle is not readily extricable are also entitled to deference and are reviewed on the palpable and overriding error standard. Questions of mixed fact and law involve the application of a legal standard to a set of facts. Where an appeal raises issues of law, the issues are reviewed on a correctness basis.[^2]
[20] The issues related to the Discipline Committee’s assessment of evidence are questions of fact and therefore attract the palpable and overriding error standard.[^3] With respect to the other issues raised in this appeal, namely the issues related to the Discipline Committee’s decision on penalty and costs, there are no identifiable or extricable errors of law and therefore they attract the deferential standard of palpable and overriding error.
Issues
[21] The Appellant raises the following issues:
(1) The Panel made a palpable and overriding error in finding that it was for the purpose of collecting an outstanding bill rather than for the purpose of delivering post-operative medication that the Appellant looked up S.L.’s address, attended at her home and engaged in an altercation with her.
(2) The Panel erred in finding that the Appellant’s conduct constituted a significant departure from his professional obligation amounting to professional misconduct.
(3) The penalty of a three month suspension was not reasonable.
(4) The costs award of $62,400 was not reasonable.
[22] The Respondent, on cross-appeal, submits that the Panel erred in declining to order that a condition and limitation be imposed on the Appellant’s licence requiring that he practise veterinary medicine in the presence of another veterinarian approved by the College.
Analysis
Issue 1. Did the Panel make a palpable and overriding error in finding that it was for the purpose of collecting an outstanding bill rather than for the purpose of delivering post-operative medication that the Appellant looked up S.L.’s address and attended at her home which resulted in an altercation with her?
[23] The primary issue raised by Appellant on this appeal is that the Panel disregarded an admission by the Respondent in the Notice of Hearing that the Appellant had taken Snoopy’s post-operative medication and surgical invoice with him when he attended at S.L’s home. It is submitted that this led the Panel to commit a palpable and overriding error by concluding that the Appellant’s purpose for obtaining S.L’s home address and attending at her home was to collect the outstanding account and for retribution rather than out of professional concern for Snoopy’s post-operative care.
[24] I agree with the Respondent that the claimed “admission” is actually an allegation by the Respondent in the Notice of Hearing. The Panel considered the Appellant’s evidence that he attended at S.L’s home to deliver the medication and his denial that he attended for the purpose of collecting the outstanding balance on the account. The Panel does not make a finding as to whether he brought the medication. At para. 36 of the Merits Decision the Panel states:
[36] Dr. Mitelman repeatedly claimed that he had no intention of collecting money from S.L. at that time and that his primary purpose in attending her home was to deliver medications. The Panel noted that at no time did any witness hear him mention anything about delivering medications. Witnesses at the home, the clinic, and the television station the next day all heard him speak about S.L. stealing from him, being dishonest, and also heard him commenting about what happens when “you don’t pay your vet bill”. In his own notes on page 14 of the medical record (Exhibit 2) he wrote that he told a man at S.L.’s home (presumably Mr. Kimmerer) that what S.L did was dishonest.
[25] The uncontroverted evidence was that the Appellant obtained S.L.’s home address from his records for the purpose of attending at her home without her consent. He attended at her home unannounced at 8:30 p.m. Snoopy’s medication was not left at S.L.’s home. The Appellant testified that he brought the medication back with him to the clinic where it remained for several months until it was put back into inventory and a credit was issued on account. The Panel found it odd that the Appellant would not have simply left the medication with S.L. once the interaction became heated if his testimony regarding the importance of delivering the medication was to be believed.
[26] The Panel concluded that in spite of the Appellant’s assertion that he went to S.L.’s home to deliver medication, witnesses’ testimony convinced the Panel that it was much more probable that he became angry when he learned of her abusive treatment of his staff, her use of foul language and that she had left without paying her bill. As the Panel pointed out, if the Appellant’s true intention had been to deliver medication, there were many other (more professional) ways to accomplish that objective. The Panel concluded that he looked up S.L.’s address, attended at her home and engaged in a confrontational interaction with her for the purpose of collecting money.
[27] There was a plethora of evidence for the Panel to come to this conclusion. As the Appellant notes in his factum, it is not the role of an appellate court to retry the case. It was open to the Panel to conclude on the evidence that whether or not he brought the medication with him, his purpose for looking up S.L.’s address, attending at her home and engaging in a confrontational interaction with her was for the purpose of collecting an unpaid invoice and that this was disgraceful and unprofessional conduct within the meaning of paragraph 44 of section 17(1) of O. Reg.1093. This ground of appeal is dismissed.
Issue 2. Did the Panel err in finding that the Appellant’s conduct constituted a significant departure from his professional obligation amounting to professional misconduct?
[28] The Appellant submits that he did not go to S.L.’s home with the intention of causing her any harm. The Appellant characterizes the altercation as an “error in judgment” made by both parties, and states that it did not rise to the level of professional misconduct.
[29] The Appellant submits that the proper test for determining what rises to the level of misconduct was outlined in Barrington v. The Institute of Chartered Accountants of Ontario.[^4] In Barrington, the Court of Appeal confirmed that such a finding requires that the member a) failed to perform his or her professional duties in accordance with the standards established by the profession, and b) that this failure is “significant”.[^5]
[30] The Panel found that considering what the Appellant had been told about the circumstances of S.L’s earlier departure from the clinic, he should have known that his surprise presence at S.L.’s home was very likely to escalate an already tense situation. The Panel found that it seemed obvious that the Appellant ought to have known that his confrontational interaction with S.L. which he engaged in for the purpose of collecting money was unacceptable and unprofessional. The Panel concluded that regardless of whether S.L. was the aggressor, the Appellant was an active participant in the altercation, caused injuries, and that there was never a justification for a veterinarian to become involved in a physical altercation with a client.
[31] I cannot agree with the Appellant’s submission that his departure from the standards of the profession was not sufficiently egregious or that the Panel erred in its conclusion that this constituted professional misconduct. This ground of appeal is dismissed.
Issue 3. Was a penalty of a three month suspension unreasonable?
[32] The Appellant argues that a three-month licence suspension is unnecessary to serve the goals of deterrence and maintaining public confidence in the profession. He says that his reputation in the community and among members of the veterinary profession demonstrate that he does not pose a risk to the public. In any event, the other sanctions imposed are sufficient.
[33] The Appellant also argues that the penalty is manifestly unfit in relation to his conduct. For an appropriate range, the Appellant refers to decisions that resulted in a licence suspension of one to two months. The Appellant requests a one-month suspension.
[34] The parties agree with the well-established principle that significant deference is owed to a penalty imposed for professional misconduct because such a decision is at the heart of the Panel’s core competence. The Panel heard from and considered the evidence of numerous character witnesses and from the appellant in the course of reaching its decision on penalty. The Panel found that most of the character evidence was of limited value because many of the witnesses were unaware of the facts of the case or because they expressed an unwavering commitment to the Appellant regardless of the facts.
[35] The Panel considered in its reasons several cases with similar facts that provide for various periods of suspension. The Panel ultimately ordered a three-month suspension which fell well within the range suggested by the cases and set out a number of other reasons for reaching its conclusion, including the Appellant’s prior discipline history. The penalty falls between the four weeks requested by the Appellant and five months requested by the Respondent. There is no basis for finding that the penalty is “clearly unreasonable” or “demonstrably unfit”. This ground of appeal is dismissed.
Issue 4. Was the costs award of $62,400 unreasonable?
[36] The Appellant submits that the Respondent’s Bill of Costs claims an excessive amount of time. In particular, it is submitted that the time claimed for preparation for the hearing of 92 hours is excessive and disproportionate to the amount of time spent by the Appellant’s counsel. The Appellant seeks a reduction in the costs awarded of $15,000.
[37] The Respondent estimated its costs to be approximately $104,000 which included the Panel’s costs and the costs of independent legal counsel. It requested an order of $70,000, being two-thirds of this estimate. The Panel is not required to consider the unsuccessful party’s costs or expectations.[^6] The Panel reviewed the cases presented where appropriate costs awards were considered. The Panel considered the well-established principle that other members of the profession should not have to bear full responsibility for the costs of the hearing into the Appellant’s misconduct, especially given the serious nature of the findings made in this case. The Panel held that while the cost of prosecuting this case was substantial, it was neither unreasonable nor unjustified as argued by Appellant’s counsel. The Panel acknowledged that a wide range of percentages may be applied when making a determination of costs. The Panel awarded just less than two-thirds of the costs requested on the basis there would be additional costs for the Appellant with respect to the rehabilitative aspects of the penalty order.
[38] As costs are a discretionary remedy, an appellate court should only set aside a costs award if the trial judge has made an error in principle or if the award is plainly wrong.[^7] There is no basis for disturbing the costs award in this case.
Cross-Appeal
Did the Panel err in declining to order that a condition and limitation be imposed on the Appellant’s licence requiring that he practise veterinary medicine in the presence of another veterinarian approved by the College?
[39] The Respondent submits that the Panel’s decision not to impose a requirement that the Appellant practise in the presence of another veterinarian was fundamentally flawed because it was based on the finding that such a condition would be onerous and impractical. The Respondent submits that this finding was based on the Appellant’s testimony that he has no business interest in any veterinary clinic and only does referrals, locums and house calls through his mobile practice which would make such a condition difficult. The Respondent submits where public protection requires such a condition, the circumstances in which the Appellant chooses to practise should not determine whether the public is adequately protected.
[40] The condition sought by the Respondent was open-ended: it would continue until the Registrar was satisfied that there was no longer a requirement or a Committee ordered otherwise. The condition was accordingly onerous. However, this is not the only basis the Panel refused to impose it. The Panel noted that the proposal did not include a direct supervision component and did not see what it would accomplish. It did not consider the requirement for another member to be appropriate where the case was about anger management and professional judgment rather than issues of medical management or clinical competence.
[41] The Panel found that the conditions of the penalty imposed fulfilled the Respondent’s mandate to protect the public. As noted above, penalty orders engage the heart of the expertise of self-governing tribunals. As the Supreme Court of Canada has held, such tribunals have “greater expertise than courts in the choice of sanction for breaches of professional standards.”[^8] I see nothing clearly unreasonable, demonstrably unfit or representing a substantial and marked departure in the Panel’s decision not to impose a requirement that the Appellant practise in the presence of another veterinarian. The cross-appeal is dismissed.
Conclusion
[42] In the result, the appeal and cross-appeal are dismissed. In accordance with the parties’ agreement, the Respondent shall be entitled to costs in the amount of $7000 including taxes and disbursements.
Backhouse J.
I agree: Swinton J.
I agree: Labrosse J.
Released: October 16, 2020
CITATION: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171
DIVISIONAL COURT FILE NO.: 266/19
DATE: 20201016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse, Labrosse JJ
BETWEEN:
Dr. Jonathan Mitelman Appellant
– and –
College of Veterinarians of Ontario Respondent
REASONS FOR JUDGMENT
Backhouse J.
Released: October 16, 2020
[^1]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 37 [Vavilov], citing Housen v. Nikolaisen, 2002 SCC 33 at paras 10, 19, 26–37. [^2]: Vavilov, supra at para 37; Housen, supra at paras 4–6, 26. [^3]: See Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981 at paras 8–9. [^4]: Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409, 333 D.L.R. (4th) 401. [^5]: Ibid at para.122. [^6]: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 at para 228. [^7]: Kennedy v. College of Veterinarians, 2018 ONSC 3603 at para.24, leave to appeal to CA refused, M49478(28 January 2019). [^8]: Yazdanfar v. College of Physicians and Surgeons of Ontario, 2013 ONSC 6420 at para.145; Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para.31.